McWilliams v. State

2012 WY 153, 289 P.3d 780, 2012 WL 6120287, 2012 Wyo. LEXIS 160

• Court: Wyoming Supreme Court
• Decided: December 11, 2012
• Docket: No. S-12-0126
• Status: Published

Opinions

VOIGT, Justice.

[11] This is an appeal from the district court's order modifying a previous deferral order entered pursuant to Wyo. Stat. Aun. § 35-7-1087 (LexisNexis 2011), the district court's entry of judgment of conviction on one previously deferred count, and the district court's entry of judgment and sentence on that count. We affirm.

ISSUES

[12] 1. Are the State's Motion to Reconsider and the subsequent Order on State's Motion to Reconsider, and the subsequent Judgment and Sentence nullities, and therefore void?

2. If the Motion to Reconsider was not a nullity, was it deemed denied under W.R.C.P. 6(c)(2)?

FACTS

[43] The appellant was charged with three counts of illegal drug possession, two counts being felonies and one count being a misdemeanor. Without having entered into a plea agreement with the State, the appellant pled guilty to all three counts at arraignment. The district court found that a factual basis existed for all three counts, but ordered a presentence investigation without accepting any of the pleas or adjudicating guilt.

[T4] After the sentencing hearing some months later, the district court, over the objections of the State, entered an Order Pursuant to W.S. § 385-7-1087. The relevant term of that order, for purposes of this appeal, is the district court's deferral of further proceedings without adjudicating guilt on both of the felonies.¹

[15] One day after the order was entered, the State filed a Motion to Reconsider. The Motion to Reconsider was based on three arguments: (1) the appellant did not deserve a deferral; (2) Wyo. Stat. Ann. § 85-77-1037 is unconstitutional in that it violates the doctrine of separation of powers by not requiring the State's consent to a deferral; and (8) the district court lacks authority to grant a deferral where an information contains multiple counts. The Motion to Reconsider was filed on November 17, 2011, but it was not heard by the district court until March 27, 2012, which was 131 days later.

[16] During the motion hearing, the district court stated that it believed it had erred as a matter of law in granting deferrals on both counts, withdrew one of the deferrals, accepted the appellant's guilty plea on one count, and proceeded to sentencing. A Judgment and Sentence was filed on April 20, 2012, followed five days later by the Order on State's Motion to Reconsider. The gravamen of the order is contained in its first two findings:

1. WS. § 35-7-1087 does not authorize the Court to order deferral of multiple counts of an information or indictment;

2. The Court erred in deferring entry of conviction and sentence in both Counts 1 and 2[.]

[17] The appellant now challenges both the Order on State's Motion to Reconsider and the subsequent Judgment and Sentence. As can be seen from the appellant's statement of the issues set forth above, see supra T2, the appellant is not herein contesting the district court's determination that it lacked the authority to grant two deferrals in the case.² Rather, the appellant is challenging the district court's authority to consider the State's Motion to Reconsider.

STANDARD OF REVIEW

[T8] The parties agree that this appeal is in the nature of a challenge to subject matter jurisdiction, which is a question of law that we review de novo. Eckdahl v. State, 2011 WY 152, ¶ 16, 264 P.3d 22, 27 (Wyo.2011).

DISCUSSION

Are the State's Motion to Reconsider and the subsequent Order on State's Motion to Reconsider, and the subsequent Judgment and Sentence nullities, and therefore void?

In Plymale v. Donnelly, 2006 WY 3, ¶ 3, 125 P.3d 1022, 1023 (Wyo.2006), a mother filed a motion to reconsider after the district court entered an order granting her ex-husband's request for child support abatement. The district court denied the motion and the mother appealed. On its own motion, this Court held that motions to reconsider, and orders entered thereon, were "nullities" and therefore void, because no court rule provided for such a motion. Id. at ¶¶ 7-10, 125 . See also Ragsdale v. Hartford Underwriters Ins. Co., 2007 WY 163, ¶ 17, 169 P.3d 78, 81 (Wyo.2007). Of more significance to the instant case, we held in Steranko v. Dunks, 2009 WY 9, ¶ 6, 199 P.3d 1096, 1096-97 (Wyo.2009), "that the rule of Plymale should not be extended to pre-judgment motions to reconsider." Our reasoning was two-fold: (1) the concern with whether a motion to reconsider stays the time for filing an appeal is not present pre-judgment; and (2) district courts traditionally have had the authority to revise their rulings prior to final judgment. Id. See also Freeman v. State, 2011 WY 21, 246 P.3d 601, 601-02 (Wyo.2011) (tolling of time for filing appeal), and Broadhead v. Broadhead, 737 P.2d 731, 733 (Wyo. 1987) (district court's authority to revise rulings).

[110] The rule of Plymale v. Don-nelly, which rule is the central focus of the appellant's argument, does not apply to prejudgment motions to reconsider. The State's Motion to Reconsider was filed and heard before judgment was entered and was not, therefore, a nullity.

If the Motion to Reconsider was not a nullity, was it deemed denied under W.R.C.P. 6(c)(2)?

[T11l] We are tempted to decline to answer this question because nearly half of the appellant's brief is dedicated to an argument that would make W.R.C.P. 6(c)(2) inapplicable to her case. Before we dissect that argument, we will set forth the court rules that give the argument some plausibility. W.R.Cr.P. 1 contains, inter alia, the following sentence: "In the event that a procedure is not established by these rules, the Wyoming Rules of Civil Procedure shall govern." W.R.C.P. 6(c)(2) provides that "[alny motion, under Rules 50(b) and (c)(@2), 59 and 60(b), not determined within 90 days after filing shall be deemed denied...." In turn, W.R.C.P. 60(b) authorizes the trial court to "relieve a party or a party's legal representative from a final judgment, order, or proceeding" for any of numerous listed reasons. In the second issue raised in this appeal, the appellant contends that if this Court should determine that the State's Motion to Reconsider was not a nullity because it was really a W.R.C.P. 60(b) motion, then the motion was deemed denied 90 days after it was filed.

[112] Arguing alternatively to her primary argument that the State's motion was a nullity because it was a motion to reconsider, the appellant contends in regard to this see-ond issue that, "lf the Court determines that Rule 60 W.R.Civ.P. should be bootstrapped into criminal procedure then it is necessary that the time limits governing its exercise also be bootstrapped with it." Prior to making that assertion, however, the appellant sets forth numerous reasons why she does not believe W.R.C.P. 60(b) was available to the State as an avenue for relief: (1) W.R.Cr.P. 1 does not allow the incorporation of civil rules into the eriminal rules where a procedure is already available in the criminal rules; (2) the State could have filed a bill of exceptions, or it could have filed a motion under W.R.Cr.P. 35(a) or W.R.Cr.P. 36; (8) the State's motion truly was a motion to reconsider as it did not contain a prayer for relief seeking any relief available under W.R.C.P. 60(b) (citing Padilla v. State, 2004 WY 66, ¶ 8, 91 P.3d 920, 922 (Wyo.2004)); (4) the motion did not seek to relieve the State from the deferral order, inasmuch as the State was not burdened by the order; (5) simply asking a judge to change his or her mind is the purest form of a motion for reconsideration; and (6) this Court has previously declined to import the civil "deemed denied" rule into criminal proceedings, where the rules of criminal procedure and constitutional due process govern the timely disposition of proceedings (citing DeLoge v. State, 2005 WY 152, ¶ 12, 123 P.3d 578, 578 (Wyo. 2005)).

[113] The record supports the conclusion that the State's motion was not a W.R.C.P. 60(b) motion, but was purely a motion to reconsider the district court's deferral order. The issue of a potential deferral under Wyo. Stat. Ann. § 85-7-10837 in a multi-count information came up as early as the arraignment, with the State taking the position that such exceeded the authority of the court. It was raised again at the first sentencing hearing, where the district court entered the deferrals despite the State's objections. The Motion to Reconsider was exactly what its title suggested; it was a request that the court reconsider its decision and "change its mind." In response, during the motion hearing, the district court acknowledged that "the Court was wrong," and that "[yJou get one, you don't get two." This was strictly a motion to reconsider, not governed by the deemed denied provision of W.R.C.P. 6(c)@).

[T14] Finally, the tenor of some statements made in the dissenting opinion demand a response. The gravamen of the dissenting opinion, as it relates to the issue raised by the appellant, is the contention that the State's motion for reconsideration is a postjudgment motion, rather than a prejudgment motion. But the dissenting opinion ventures far beyond that central focus. For instance, the dissenting opinion asserts in 124 that a deferral order "is not an order that a district court may revisit and revise in the exercise of its discretion." Where is the authority for that proposition? Does that mean never? Does that mean not even at the defendant's request? Does that mean not even if the suggested revision is to the defendant's advantage? We should not be trying to answer those questions in this case, where they are not directly addressed by counsel in the briefs. Next, the following sentence appears in 126 of the dissent: "[The majority has apparently eliminated any requirement that a motion for reconsideration be founded on legitimate, substantive legal grounds." Nothing of the sort has been done in this opinion. The district court granted the motion for reconsideration because it believed that it had entered the order of deferral illegally. That seems like substantive legal grounds. In a similar overstatement, the dissenting opinion says in 1 26 that the majority opinion "condones the use of motions for reconsideration lacking any substantive basis[.]" The reader should reread the majority opinion and look for the words "This Court condones the use of motions for reconsideration lacking any substantive basis." Neither those specific words, nor the thought they impart, are contained in the majority opinion.³

[115] The first sentence of 127 in the dissent says this: "I am unaware of any rule, statute, or precedent that authorizes the district court to 'change its mind' following entry of a deferral order." That is not surprising, given that the appellant did not raise that question as a separate issue, nor did she brief it so as to tell this Court what "rule, statute, or precedent" we should be following in telling the district court that it has no such authority. Next, also in 127, the dissenting opinion quotes Ken v. State, 2011 WY 167, ¶ 32, 267 P.3d 567, 575 (Wyo.2011), in chastising the majority in the present case because it "fails to reflect and take into account the very limited ability of the State to challenge adverse determinations in a criminal case." A couple of comments about this quotation are in order. First, the appellant did not rely upon Ken in making her nullity argu ment. Second, Ken does not say that the State has a very limited ability "to challenge adverse determinations in a criminal case." What Ken says is that, "[iIn Wyoming, the prosecution in a criminal case does not have the right of direct appeal." Id. at ¶ 32, at 575. Ken cites State v. Newman, 2004 WY 41, ¶ 23, 88 P.3d 445, 458 (Wyo.2004), which involved "rare and unusual cireamstances" wherein this Court accepted the State's petition for writ of review in lieu of a bill of exceptions after the district court dismissed the State's case with prejudice. Id. at ¶ 23, at 458. Ken also cites Crozier v. State, 882 P.2d 1230, 1236 (Wyo.1994). Crozier also has nothing to do with the present case; the question in Crozier, to which the answer was "no," was whether the State could get around the "no appeal" rule by cross-appealing after a jury trial. Id. at 1286. The instant case has nothing to do with the right of the State to bring an appeal or a bill of exceptions to this Court.⁴ The question raised by the appellant has only to do with a pre-judgment ruling in the district court.

[116] Next, we must note the dissenting opinion's claim in % 33 that, "[with this opinion, the majority opens the door for discretionary reconsideration of the deferral order at any time during the probationary period." If that door is open, it is not because of the majority opinion. It is open because the Court has not been made aware, by this appellant or anyone else, of a rule of law prohibiting the district court from amending a deferral order while the case is still pending in that court's jurisdiction. Furthermore, this case involves a district court's determination that the order was illegally entered. There is no suggestion that the district court, in the exercise of its discretion, may modify a deferral order willy-nilly. The question of what a district court may or may not do with a deferral order is not before this Court as a stated issue in this case. That issue needs to be briefed and argued before it is answered. If the district court has no authority to correct an illegality in a deferral order, does that mean the court has no authority, for instance, to correct an illegality such as placing the defendant on probation for ten years, where the maximum is five years under the statute? Could the district court not make that correction sua sponte? In other words, does this Court, rather than the district court, have jurisdiction over a deferral order, with the exception of revoking the defendant's probation if the defendant is not successful or dismissing the case if the defendant is successful? This is not the case to try to answer that question.

[117] Lastly, W.R.A.P. 1.05 and the cases annotated thereafter make it clear that a "final" order and an "appealable" order are not necessarily the same thing. An order may be appealable even though it is not the final order entered in a case. Clearly, a deferral order is not a final order. The district court retains jurisdiction over the case, and a variety of additional orders may be entered. The fact that it may be an appealable order really has little to do with whether or not the district court may or may not amend it on the ground that it was an illegal order.

CONCLUSION

[118] The State's pre-judgment Motion to Reconsider was not a nullity, and it was not a W.R.C.P. 60(b) motion that was deemed denied 90 days after filing. We affirm.⁵

1 . Wyo. Stat. Ann. § 35-7-1037 reads as follows:

Whenever any person who has not previously been convicted of any offense under this act or under any statute of the United States or of any state relating to narcotic drugs, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under W.S. 35-7-1031(c) or 35-7-1033(a)iii)(B), the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under W.S. 35-7-1038. There may be only one (1) discharge and dismissal under this section with respect to any person. This section shall not be construed to provide an exclusive procedure. Any other procedure provided by law relating to suspension of trial or probation, may be followed, in the discretion of the trial court.

(Emphasis added.)

2 . See Barnes v. State, 951 P.2d 386, 388 (Wyo.1998), and Dickson v. State, 903 P.2d 1019, 1025 (Wyo.1995) ("[We might find a good deal of difficulty in sustaining the district court. Wyo. Stat. § 7-13-301 [ (LexisNexis 2011)] does not readily adapt to its application in a multi-count case. The legislative intent seems clear to the effect it can only be used once."). Wyo. Stat. Ann. § 7-13-301 is the criminal code equivalent of Wyo. Stat. Ann. § 35-7-1037, which is found in the controlled substances act.

3 . The penultimate sentence of 126 of the dissenting opinion says that the majority opinion "upholds 'post-judgment' motions for reconsideration that merely ask the district court to 'change its mind.'" We assume this is a typographical error, and that "prejudgment" was meant instead, inasmuch as the majority opinion is based upon the contention that a deferral order is a '"pre-judgment" order, not a "post-judgment" order.

4 . A clarification might be in order here. In 130 of the dissenting opinion, the first sentence says that "[it should be noted that the Order the State attempted to challenge in this case by appeal was the 'Judgment and Sentence' entered by the district court following the hearing on the motion to reconsider." This reference is to the State's filing in this Court of a cross-appeal, which it subsequently attempted to have converted to a petition for writ of certiorari. The motion to convert was denied and the improper notice of appeal was dismissed. In other words, once the district court had entered a judgment and sentence, this Court honored the proposition that, at that point in the case, the proper remedy for the State to seek was a bill of exceptions.

5 . It should be noted that, though the issue was mentioned in passing, the appellant does not herein directly challenge the authority of a trial court to "change its mind" and amend a deferral once the defendant has begun to serve his or her probation under the deferral order. Consequently, this opinion does not address that issue, or any other issue the appellant could have raised but did not.